federal prosecutors do not like to try cases they cannot win. it looks bad for their political boss, the US Attorney, and for the DOJ as a whole. Impact here is tremendous and not just for this ruling itself. The majority of this Court are clearly pro-police, pro-prosecutor, and pro- "lock-em-up." The *most conservative" of the Court Justices wanted to throw this law out and said so. It was the "more liberal" Justices who left it on the books and confined it to bribes and kickbacks. HOW very weird is that? It signifies that prosecutors have been overreaching, are unable to make their cases without bending the law beyond the breaking point, and tells us that the Court knows it and is sick and tired of it. Not to paint with too broad a brush, as there are some dedicated , highly ethical prosecutors out there. However, the majority are full of hubris, false righteousness, and use highly questionable tactics to deliver on their all-important conviction rate. This ruling sends a clear message: Convict on the facts as the statute is written and stop inventing the law. The real judicial activists are the prosecutors - they make it up as they go along.

5:13 pm June 24, 2010

anon. wrote:

Many of the current issues in honest services fraud jurisprudence are discussed in detail by George Holding (U.S. Attny, EDNC) et al. in "Federal Prosecution of State and Local Officials Using Honest Services Mail Fraud: Where’s the Line?," a recent article published in the Campbell Law Review: http://law.campbell.edu/lawreview/articles/32-2-191.pdf.

2:27 am June 26, 2010

Anonymous wrote:

This decision takes a very valuable arrow out of the DOJ's quiver. Expect some confusion in many major public corruption cases in the coming years as the lower courts sort through its implications. I'm sympathetic to the view that the statute was unconstitutionally vague, but ultimately, it was used against some people who were pretty damned crooked, but not necessarily bribed. I'm still working my way through the opinions, but it seems to me that there will be some critical appellate level litigation about some major convictions very soon.

Gratified, I think your statement that "...the majority [of prosecutor's] are full of hubris, false righteousness and use highly questionable tactics to deliver on their all-important conviction rate." is both wrong and hypocritical. It is hypocritical to accuse the majority of prosecutor's of making things up as they go along when in fact you have absolutely no proof that they do so (you're making it up at you go along!). Qualifying your statement with "not to paint with too broad a brush", and then making the assertion that "a majority" of people do something is wholly unfounded given that you cannot possibly have met a majority of prosecutors nor could you empirically prove anyone "makes[s] is up as they go along". Furthermore, the idea that prosecutor's have been overreaching within honest services cases may be true, but your invocation of the "all important conviction rate" denotes a misunderstanding of the ways that federal cases work. Conviction rates are not tracked in Federal prosecutors offices the same way they are at DA's offices. Federal prosecutor's are not evaluated individually based on conviction rates, their litigation sections are. This decision may allow some very crooked people out of jail, and I'm not persuaded that the law was being abused. Jeff Skilling? He's a victim here? Rod Blagoyevich? The statute said people were entitled to an "intangible right to honest services". I can't say I disagree with that.

10:57 am June 27, 2010

Lsssrrrrr wrote:

Have to say I agree with all of the above in many ways. Much thanks to anon at 5:13 - for providing a great brief and study of the history.

My suggestion would be 18 USC 1346 a - z sub. Define each different abuse. The problem here is fear, trepidation and laxity.

The good order of society commands check n balances. Cronyism, nepotism etc - shall always be. There can never be a Brite line Code to define mindset for hiring a co worker - such as a former AUSA one trust and calling such cronyism as a crime. The difference is such favortism can Never go into the realm of benefit beyond belief in quality of character of the person granted a position and intent or apparent bad faith benefit.

We all accept the premise you can give your fellow Ivy league classmate a position due to your familiarity with him or her. But you cannot ask for a car in return!

The problem is 1346 touched a problem Politico,s tremor to think about and the reality is - all successful counsels are networking - politician captians. Otherwise a case would come to court and we would all have to raise our hand and say pick me.

The commentors above - all have valid points - and those of you who have followed our Toy case with Dre eir and Pedders - needing 2 t,s - see how much abuse is within our system. Therefore, Congress needs to be forced by all sides - to bring this issue to a platform and resolution.

Currently - I am working on an elder abuse case where the wife died - the sons forged a will and tossed their father out of the home. They kept more than one million of their father and mother,s life work and allowed their Dad to stay in the house as one third owner until he dies. Having squandered the money in just a few years on loose living, they forged the Deed because one son has the same name as the father - except for Jr Sr.

His banter in court was based upon the premise that as trustee, he had a fiduciary duty to himself - as a benefactor of the trust and that even if, arguendo, give the title of bad faith act to his deed alteration. He was going to be the ultimate beneficiary - thus there was no real harm or foul - as he Honestly wanted the money sooner than later!

Thanks for the article and the great comments, info from above. As was stated in the footnotes of the PDF referenced above
206 - everyone agrees in principle that it is a Bad Thing.
208 - the Law does not define fraud - it needs NO definition - it is as old as falsehood and as versable as - SIC - human ingenuity.

I luv it when Judges maxim the obvious and cut thru the bull.

3:59 am June 29, 2010

TheAdvocate wrote:

I agree with Lsssrrrr's comments. As this law becomes more clearly defined the applications become more apparent. Like Lsssrrr I'm here on the community level dealing with cooked cops, district court judges, and county officals who are playing ping-pong with peoples constitutional rights behind the judical curtain. The big boys like Enron make news but its the county and city corruptions that are pandemic. These average citizens need remedy and I'm hoping this law will provide a means. It doesnt need to be the big fat fish honest services fraud frys does it?

Add a Comment

Error message

Name

We welcome thoughtful comments from readers. Please comply with our guidelines. Our blogs do not require the use of your real name.

About Law Blog

The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

Must Reads

Plaintiffs' lawyers dodged a bullet last year when the U.S. Supreme Court spared a quarter-century-old precedent that had served as the legal linchpin of the modern investor class-action case. Despite that win, a new report suggests that securities class actions have lost some of their firepower.

In a week in which images of Prophet Muhammad were connected to acts of terror and defiant expressions of freedom, a sculpture of the prophet of Islam inside the U.S. Supreme Court has drawn little notice.

Alan Dershowitz has vowed to slap a defamation suit against the two lawyers who claimed in a court document that Florida financier Jeffrey Epstein arranged sexual liaisons for him with an underage prostitute. Those lawyers have beaten him to the punch.

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention. Drawing less coverage is the lawsuit itself -- a case with the potential to expand the rights of crime victims during federal investigations.